M & M - [2005] FamCA 207

[2005] FamCA 207

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY No. SY5613 of 2002

BETWEEN:

Husband

- and -

Wife

REASONS FOR JUDGMENT

BEFORE: The Honourable Justice Moore

HEARD:18, 19, 20, 21, 22, 25, 26, 27, 28, 29 October,
29, 30 November & 1 December 2004
(Further evidence and submission 24 February 2005)

JUDGMENT: 9 March 2005

APPEARANCES: Mr Millar of Counsel, instructed by Meyer Pigdon, DX 11578 Sydney Downtown, appeared for the applicant/wife.

Mr Brereton, Senior Counsel, with Ms Hanna of Counsel, instructed by Michael Conley, Solicitors, DX 647 Sydney, appeared for the respondent/husband.

Proceedings

To be determined are the future parenting arrangements for four children, division of property between the parents, and the mother’s claim for spousal maintenance.

At the close of hearing there was to be provided further information about the capital gains tax payable should there be a sale of properties owned in the Southern Highlands but that was not made available until a letter dated 24 February was received though the single expert’s report on the issue was dated 21 December. It was also only at that time there was received the list of assets that was to be further discussed when submissions closed. Those two documents should become part of the Court record and are now marked exhibits.

Brief background

Mr M, 54, and Mrs M, 45, began living together in 1982 and they married in July 1984. Their four children are: T, 15 (born 1989), A, 14 (born 1990), N, 12 (born 1992), and L, 8 (born 1996). They separated in August 2002 and were divorced in December 2003.

They began their life together in Sydney, moved to the United Kingdom in 1990 in circumstances to be discussed later, and the family returned to Australia in late 1999 to live in a property they had acquired in the Southern Highlands, though Mr M divided his time over the next few years between Australia and England where business interests were retained.

The Southern Highlands property comprises a vacant lot and two adjoining lots on which there are two residences: ‘C’, the smaller home, and a larger residence, ‘W’. Since the separation Mrs M and the children have remained living in ‘C’ and Mr M rents a home in the general vicinity.

Children’s arrangements

From their separation until early October 2002, they operated a shared care arrangement for the children by daily rotation where one parent was at the home and the other not. That then came to an end because proceedings were instituted very shortly after their separation and in October 2002 they consented to interim orders. Mr M agreed to withdraw from the home and they further agreed the children would continue to live there with their mother for most of their time and spend alternate weekends during school terms and half the school holidays with their father. Mr M sought to vary these arrangements by an application filed in March 2003, apparently to reinstate the earlier shared arrangement, but that was dismissed with costs, presumably because nothing was established to warrant re-opening the issue on an interim basis. There were further proceedings related to the children in December 2003, when orders were made, again by consent, permitting Mr M to take them out of Australia for a holiday in January. So it is that the orders of October 2002 represent the formal arrangements for the children over the two years leading up to the hearing.

Orders sought

The orders Mrs M now seeks to achieve are set out in exhibit 1 and the financial orders she proposes are to be found in her amended application filed in November 2002. Expressed in a summary way, the children would continue to live primarily with her and spend time regularly with their father: each alternate weekend (Friday afternoons to Monday mornings) and each Wednesday overnight (an addition to the current arrangements) during school terms, the school holidays would be shared equally, and there would be other specific arrangements for Christmas and special occasions. As for property settlement, fundamentally she proposes retaining the Southern Highlands property and receiving payment of $700,000. She also claims spousal maintenance.

Mr M, on the other hand, seeks orders that would see the children spend their time equally between his household and their mother’s – during school terms on a week about basis and during school holidays for equal periods – specific arrangements for Christmas, and other orders related to the children’s schooling. His proposals about property settlement are set out more particularly in exhibit 2. In part, Mrs M would retain ‘C’, he would receive ‘W’, the vacant lot would be sold with the proceeds divided equally, and Mrs M would receive payment of $137,000 as well as some chattels. He seeks the dismissal of her spousal maintenance claim.

I should say at this point that while both are agreed Mrs M will retain ‘C’, she objects to Mr M receiving ‘W’ as part of his property settlement. While she has no intention of living in that home, or necessarily even keeping it depending on her financial circumstances when these proceedings are resolved, her objection relates to the proximity of the residence to her own and the discomfort that would cause for her given the dynamics and state of their relationship. Despite the financial cost by way of capital gains tax and vendors duty outlined by the single expert in his recent report, those properties will be sold. Counsel for the husband submitted in that event the taxes should be left with Mrs M to bear but I reject that because the sale comes about by reason of the difficulties both parties present for the children by any alternative arrangement and the impracticability and undesirability of their parents living right next door to each other.

Evidence

A great body of written evidence was filed prior to the hearing – more particularly from the parties themselves, but also from various lay and expert witnesses - and the hearing itself, when this evidence was tested and further documents tendered, occupied 13 days. Plainly all this requires review and evaluation. But it is also plain that from the vast array of detail presented as either fact, perception or opinion, a judgment has to be made about what is more central to the decision required, what differences are sufficiently relevant to require express findings, and a selection has to be made of what constitutes core areas for discussion. So I do not propose to discuss all of the evidence or make findings about every area of dispute.

To resolve differences in the historical account, submissions were made about the parties’ credit. Counsel for the wife, on behalf of Mrs M, pointed to a number of areas of Mr M’s evidence that suggested resolution in her favour. He discussed the evidence Mr M had given about his relationship with Ms RF, the failure to make reference to various matters in his financial statements, the inconsistency of his evidence with Mrs MK’s about Mrs M signing blank pages and the implausibility that he lacked knowledge about it, inconsistency about dates and reasons for the transaction concerning the failed purchase of a farm, his failure to directly answer questions put to him concerning investments by arguing his case on the point, and his presentation of himself as ‘retired’ when he made enquiries of recruitment firms about obtaining employment.

All of these were addressed by Counsel for the husband in reply intended either to place them in context or to dismiss their significance as a credit issue. He also catalogued the areas of Mrs M’s evidence that went to her credit. There were unsatisfactory aspects of her evidence related to the parenting issues including her concession that she had understated Mr M’s involvement with the children, the inconsistency between her allegation her husband had kept information from her about their financial dealings on the one hand and her concession that he had overloaded her with information on the other, and her concession that the years she had identified as a struggle was not a fair description.

My own view is that there were shortcomings in the evidence each gave and disputed issues should be determined as they arise depending on the body of evidence going to the point rather than a broad assessment of the reliability of the evidence of one over the other based on these submissions. In what follows, unless the contrary appears, statements of fact may be construed as findings of fact.

History

At the time they began living together Mr M operated a personnel consulting business – ‘E Consulting Group’ - established in 1979 with others and Mrs M was working as a legal secretary. Apart from his interest in the business, Mr M had savings of about $10,000, a Falcon vehicle, and various household and other items. Mrs M had some items of personalty but no assets of any real value. He was earning about $60,000 per annum through the operation of his business and she was earning in the order of $20,000 per annum. Around this time Mr M expressed his long term goal in life to build a business up before selling it so as to pursue his other interests such as writing.

They both worked and travelled regularly until 1986. They had their respective incomes available to meet the living expenses associated with their lifestyle and whether or not Mrs M’s income went towards her own requirements is neither here nor there because in either event it was used to meet their needs as they perceived them at the time. In 1986 Mrs M left her job (they differ about the surrounding circumstances) and she has not been in paid work since, though she was later paid a salary from the business conducted in the United Kingdom.

That same year, 1986, they purchased a flat in V Street, Sydney, for either $110,000 or $140,000. There is no common account of how the purchase was financed. In all probability they had some savings accumulated from the time they joined forces, some money came from the business, and certainly some money was borrowed from the bank. They moved into the flat and renovation or refurbishment was undertaken. In late 1988 they purchased the downstairs flat for $115,000 or thereabouts, probably paid for by a combination of drawings from Mr M’s loan account with ‘E Consulting Group’ and a bank loan. It was used for storage. Both flats provided security for the business overdraft.

T was not born until April 1989 and from the time she ceased work until she fell pregnant, Mrs M ran the home, saw to things associated with the refurbishment, and planned their holidays which appeared to be a feature of their lifestyle at the time. Propositions were put to Mrs M about what she did with her time in these few years - playing tennis, lunching with friends, shopping and the like – but she denied the inference of idleness, though she readily conceded they had a ‘good life’. During these years, she agreed the business totally funded the work on the V Street property, paid for their holidays and living expenses and sustained their lifestyle generally.

After T’s birth, indeed subsequent to the birth of each of the children, there is considerable contention about the extent to which Mr M participated in or assisted with the care of the children in the form of routines associated with bathing, feeding, dressing and the like and, later, with tasks associated with their schooling, school and extra-curricula activities. There is also contention about the extent to which he did housework or undertook routine domestic chores. I shall deal with those topics later.

The ‘E Consulting Group’ business grew in the 1980’s and came to operate Australia wide, which involved Mr M travelling frequently, and it seems to have been effected adversely by the stock market crash of 1987.

During 1990 they moved out of the area to other rented accommodation prior to A’s birth in November of that year and they rented out the V Street premises. Mrs M received the rent and mortgage repayments came from the business. During that same year the bank reduced the business overdraft limit, ‘E Consulting Group’ could not comply with the requirement, and the company was put into voluntary liquidation. From about September Mr M no longer received an income but worked with those involved in the liquidation prior to the sale of the business. What had been built up to that point was mostly lost. Mr M retained his superannuation, household effects, and they still had the V Street properties though they secured debt. The rent provided them with some income.

With the business gone, very little capital left, and two children – one just born – they made the decision to move to the United Kingdom to start again. For that purpose, Mr M cashed in his superannuation entitlement and received $27,000. They differ about the extent of Mrs M’s willingness to leave Australia but, to the extent it matters at all, I accept she approached the move to England with a mixture of sadness at leaving her family, anxiety about what the future might hold, but excitement at living there. In short, she was probably tentative but also supportive of her husband.

Mr M left Australia in December to explore business opportunities and secure accommodation for the family before they joined him there around March or April of 1991. In the meantime, Mrs M and the children lived with her mother in Sydney and, in all likelihood, Mr M arranged for a former employee to give her some assistance with the arrangements she needed to make during his absence. After a short stay with his sister and her husband, Mr M rented premises for the family in Surrey and he established a personnel business trading as ‘ABC’ through ABC Personnel Limited. In a short time he leased serviced offices nearby to conduct interviews, but this arrangement was fairly short lived before the business came to be operated out of the dining room of the home where the family lived.

Around the middle of 1991 the V Street properties were sold and the mortgagee retained the proceeds. In the meantime Mrs M had negotiated a personal loan of either $20,000 or $25,000 from a bank. This was put towards the establishment of the new business and (possibly) to pay for some work to the flats prior to sale. After the sale of the flats repayments for the personal loan were taken over by the new business and it was repaid by 1995.

Plainly the move from Australia and the establishment of a new business in England involved considerable upheaval for the whole family. Each did what was necessary in their own area of responsibility: Mr M made the preparations necessary for the family to join him, investigated what business opportunities there might be, and he lay the groundwork for the business established; Mrs M cared for the children, she made all of the preparations to move and did move with the children to join him. The funds for all of this came from the superannuation, the personal loan, and some rental income on the V Street properties prior to their sale. It was a relatively modest investment given later events, but no doubt there was struggle and risk for them at the time.

The family shared with others the premises where they initially lived and from where the business came to be conducted. Their circumstances were apparently modest and conditions not ideal. Later in the first year of operation of the business they moved to live in Surrey, in other rented premises, The Cottage, located on a five acre lot. The rent was paid by ABC and business premises were established nearby.

After this move they engaged part time help to assist Mrs M with the home and the children. Indeed, from this point there was paid home help throughout most of the remainder of the marriage. N was born in August of the following year.

In due course they secured the children’s placement at a private school and, as parents, both became involved in their children’s school and their various activities. The children were later withdrawn from this school and enrolled at another private school. While Mrs M appears to have been instrumental in this decision, there was no common ground about the reasons for it.

In 1994 Mr M incorporated additional companies, no doubt motivated by the growth and direction of the business at the time: ABC Industrial Limited (ABC Industrial), ABC Education Limited (ABC Education) and ABC Project Management Services (ABC Project). During this year Mr M’s mother died and he inherited approximately 1,000 pounds.

In 1996 the family moved again, this time to other rented premises in Sussex and the business premises were relocated. L was born in November of that year.

While it may well have been, as Mrs M said, their life was something of a struggle when the business in Australia was collapsing, their lifestyle improved over the years from the time they moved to England and the business prospered. They had not in those years purchased their own home, but there was around them all the indicia of a comfortable life, evident from the homes they lived in and the enrolment of the children at private schools. There was also travel for holidays, including trips back to Australia each year at least for Mrs M and the children, and Mrs M’s mother visited them in England each year, much of her costs being paid for out of business earnings.

As time progressed the decision was made to sell the business and return to Australia in accordance with their earlier discussions in 1990. To that end, they sought advice about the taxation implications of a sale. The upshot was the incorporation in the Channel Islands of a company, ‘P’ Publishing Limited, as the vehicle for sale with Mrs M as the sole shareholder. Other advice was sought and professionals were consulted about the proposed sale and the financial consequences.

In February 1998 ‘P’ Publishing was sold to the XYZ Group for over 8.25 million pounds. Terms included the provision of 900,000 pounds to be taken by way of shares in the XYZ Group and 525,000 pounds to be paid through ABC Project to key staff members by way of employee bonuses. The net proceeds of the sale, over 7.3 million pounds, were paid to Mrs M by way of deposit into a Jersey Bank account.

Following the sale, Mr M worked part-time in the business for a number of months for the XYZ Group at a remuneration of 5,000 pounds per month.

These were the circumstances in which the parties had available to them, some seven years or so after arriving in England with very limited funds and a loan to repay, an enormous amount of money. There was a lot of activity from early 1998 about advice as to its investment. A Bank in Switzerland advised them to invest in a mixed portfolio and the Bank would manage the funds. None of the sale proceeds were remitted into the United Kingdom, but most of it was subsequently sent to the Swiss Bank, with the balance remaining in Jersey for a year as a post sale indemnity for the purchaser of the business.

Thereafter they purchased, in Mrs M’s name, a property known as The Cottage in Surrey, for around 950,000 pounds. The purchase was funded wholly by loan from The Swiss Bank. Renovations were undertaken and both were involved in that.

With The Cottage acquired, they began their investment in shares, a topic I shall return to later.

In August 1998 the XYZ Group offered Mr M the opportunity to re-purchase a division of the contract employment business. The price was a nominal sum but the debtors would be purchased for 400,000 pounds. The offer was accepted. On advice they established a company in the Bahamas to act as holding company for the new venture - 123 Sports Limited - though neither became directors or shareholders and it was controlled initially by The Swiss as nominees. In due course a total of 550,000 pounds was transferred from the Swiss accounts to purchase the business and provide working capital. Former employees of ABC, Mr DC and Ms MK, were appointed to the positions of managing director and financial controller respectively. At some point the parties came to control the company that owned the business and still later Mr DC took a 35% interest, Ms MK a 10% interest and Mr M was left with 55%. No consideration was paid by them for their interest. The relationship between Mr M and Mr DC came to be testy and later deteriorated into a major falling out resulting in Mr DC’s dismissal in May 2003.

Their plans for a return to Australia firmed towards the end of 1998 with all this going on and to that end Mrs M inspected some properties in the Southern Highlands area with her friend, Mrs SJ, during her trip here in January 1999 though nothing was acquired at the time. Then Mr M came to Australia in the middle of 1999 to locate a home for the family. With the assistance of Mrs SJ he inspected a number of properties before purchasing the Southern Highlands property for $2.8 million. On advice, the property was registered in Mrs M’s name. After settlement Mr M did some preliminary maintenance work, including having a fence erected around the property and trees felled. He visited schools and the children were subsequently enrolled at private schools in the area. He purchased a Land Rover vehicle for Mrs M’s use after her arrival.

Mrs M and the children returned to Australia to reside on a permanent basis in October 1999 and Mr M joined them in early November. They decided to renovate the Southern Highlands residences and it was agreed Mrs M would oversee the project and be responsible for budgets and contractors with an agreed budget of up to $1 million. She engaged the services of an architect, the brother of Mrs SJ, though he was ultimately dismissed in 2001 and his further rather substantial fees paid. It seems Mr MJ, husband of Mrs SJ, was also engaged to undertake work on the property and he was paid $40,000, a topic pursued with Mrs M in cross-examination. Later, around March 2000, they lent Mr MJ $18,400.

They lived in ‘W’ for a number of months while renovations were undertaken on ‘C’ and the family moved in there in mid 2000. ‘W’ remains unrenovated and has been used largely for storage over the years. There was a question about whether ‘W’ was habitable when they first occupied it. But nothing is to be made of this, they lived there for months on their arrival in Australia, there may have been some minor inconveniences, and some of Mrs M’s own witnesses regarded it as quite habitable. There was also an issue about how Mrs M had cared for the property since she had been given exclusive occupation by the orders of 2002 and whether she had allowed it to fall into a state of disrepair. What has certainly happened is that items stored there have been strewn around, it has not been kept in a clean and tidy state, and there has been some damage not yet repaired. Mrs M agreed she had not been particularly attentive to the house while it has been her responsibility, but there is nothing that suggests any major work necessary to restore it to its state in 2002. At the end of the day, the point does not rebound against her contribution entitlement.

It can be noted here also that in September 2003 Mr M proposed the Southern Highlands properties be sold and there be an interim division of property or he live in ‘W’ or alternatively ‘W’ be leased. She refused the proposals and that was a topic she was questioned about at the hearing. Rental might have defrayed some of their living costs being met from capital with income no longer coming from the business by that stage and rental might have seen ‘W’ in a better state at the moment. But in the whole scheme of things it would have made little difference and argument about waste through this refusal to take up options offered has no real merit.

To return to earlier events, in January 2000 they leased The Cottage for two years for the sum of 3,000 pounds per month and the rent was deposited into the Swiss Bank account to repay the mortgage. Towards the end of 2001 the tenant vacated earlier than previously notified and failed to make the rental payment for a month. In April 2002 the property was sold for 1,800,000 pounds and the proceeds deposited into the Swiss Bank account.

Also in January 2000 the shares taken in the XYZ Group were sold for 734,770 pounds and this money was deposited into the Swiss Bank account.

That was also the time when there was a downturn in the stock market and it was agreed Mr M would spend time each year in England to concentrate on the ABC business. As it happened, he spent about half his time in Australia between 2000 and 2002.

After his arrival in England in 2000 Mrs M transferred to him 250,000 pounds sterling from her Swiss Bank account to invest. Instead, he lent 217,150 pounds to Ms RF, a former employee with whom he had an intimate relationship. As it transpired, he also advanced to her another 5,000 pounds. She has never repaid the money. It is agreed here that Mr M will take the first mentioned amount as part of the assets he retains, but there is dispute about several other matters bearing on his financial arrangements with Ms RF and it will be convenient to deal with them now. The issues are whether there should also be added to his side of the ledger (i) the amount of interest referable to the loan to her, (ii) 10,012 pounds paid to her in 1998, and (iii) the 5,000 pounds.

The interest figure Mr M would accept is $75,193 which is calculated using the 3% per annum agreed whereas Mrs M’s case claims $123,989 which has been calculated using a calculation of 5%. Despite the agreed rate, the latter is said to be more in line with an investment return given the purpose of the funds given to him and his failure to consult with his wife about the use made of the funds. The argument is a reasonable one but without any information about market rates to compare, I can only fall back on the agreed rate and therefore the amount included will be at 3%. As for the second issue, this is resisted because it was said to be earnings by Ms RF for work she did at the time for ABC. As I assess it, this money was paid at a time well before their relationship began, on Mr M’s account of that at least, well before an announcement was said to have been made to the staff about that relationship, and therefore I am inclined to accept it was payment for work done. The 5,000 pounds is also resisted, though there is no dispute it was advanced to her. Counsel for the husband’s argument about its exclusion relates to Mr M’s record of generosity with payments to Mrs M’s family from their joint funds - $50,000 and $25,000 to her sisters and a motor vehicle for her mother – and he suggests it would be unreasonable to add this additional amount back as his asset. On one view, there might be a distinction drawn and Mrs M’s pursuit of its inclusion is understandable. But when viewed from a more detached standpoint, it is ultimately money out of their joint funds that would otherwise be available, as with the gifts to her family, and when there is no counterbalancing generosity with family on Mr M’s side and there is no adding back of those gifts, there does seem to be some merit to the argument it should be left to lie where it is to balance the books at least to that extent. The last two of these amounts will not appear in the asset list later.

I should say while this topic is under discussion the evidence of Ms CF touched upon his relationship with Ms RF and arrangements made allegedly to create a subterfuge about his living arrangements when his wife visited from Australia. But that adds nothing of moment on the decision to be made here.

In September 2000 a company they had incorporated, SG Properties, acquired a flat in Surrey for around 152,000 pounds. The property was sold in late 2001 for 165,000 pounds and after repayment of the loan the balance was deposited with the Swiss Bank.

It was also around September 2000 that Mr M entered into a transaction to acquire a farm and that ultimately resulted in him losing a deposit of 50,000 pounds or $124,056. A waste argument was mounted about this and in his submissions about it Counsel for the wife went to the exclusivity agreement Mr M signed and the restrictive provisions there about entitlement to return of deposit. He maintained Mr M knew nothing about any of that when he entered into the agreement or what the survey was likely to show and he took a risk with a fairly substantial amount of money that amounted to no more than a gamble. It came after the downturn in the stock market of earlier that year, it was a transaction he did not involve his wife in at all, and he had no clear proposal about what he intended to do with the property. In summary, it was an unwarranted risk, a foolish decision, lacking requisite knowledge, and a decision he took without consulting his wife. The upshot should be, according to Counsel for the wife, a finding of waste on his part and dealt with by adding the lost deposit back to the asset list against him.

Yet I consider it would be unjust to visit the loss on Mr M now. Certainly it was a decision he made while his wife was in Australia and she seems not to have been involved in it though money was provided to him for investment without any specificity attached to it and, amongst all that was said about the decision, it could not be said he was not genuinely motivated to improve the family’s circumstances in entering into the agreement. As it turned out, it proved to be a wrong move and he made the decision to withdraw and forfeit the deposit rather than proceed. Even so, it is not a transaction of the kind discussed in Kowaliw and Kowaliw (1981) FLC 91-092 and nor, one would think, would appellate review consider otherwise given their views expressed in Brown and Green (1999) FLC 92-873.

By the time their marriage broke down in late August 2002 they had been living back in Australia for nearly three years. They had acquired the Southern Highlands property and improvements had been done to it including the renovation of ‘C’ where the family lived. Property had been bought and sold in England, money had been lost on the farm transaction, and The Cottage had been sold. They had also sold their shares in the XYZ Group. The business in England had been operated over these years with Mr M spending periods of time there, he had been drawing a salary from the business from around March 2001 though the financial position of the business was starting to deteriorate. Trading had also been carried on with respect to their share portfolio and they had suffered losses with the decline in the stock market in early 2000. Yet severe losses were sustained in the stock market crash of July 2001 when the price of the shares fell to the floor.

The background to their investments, the fluctuations in the value of shares they held, and the losses they ultimately suffered with the collapse is detailed in the single expert’s earlier report of July 2004. When he reviewed the history of trading, loss on those shares was in the order of 5.85 million pounds and their overall loss on share trading was slightly less at around 5.66 million pounds.

In the assessment of their entitlements here, Mrs M seeks to sheet home responsibility for these losses to Mr M and Counsel for the wife argued that should be recognised, on the basis of a contribution assessment of equality, with a 30% adjustment in her favour on s 75(2) factors. That constituted a major area of dispute between them and it can be dealt with now.

The material that constitutes the background documents to these share dealings was extensive, as was the evidence of the parties in their affidavits about it, and it was the subject of rather lengthy cross-examination at the hearing. It would be impracticable to recount that here, it is part of the record as are the submissions about it, and it will suffice to give a summary account of their respective positions.

Mrs M recounts her discussions with Mr M about the share investments and about the drop in the share price. She maintains she was opposed to borrowing money (done in Swiss francs) to purchase shares. She raised with her husband the risk being taken and suggested in particular that the shares be sold after they had declined in value and when a profit could still be made, but he did not listen. She told him of the warning given by Mr T to her about putting their investments ‘in the one basket’, but he took no notice. Rather, he continued to risk a substantial proportion of their accumulated wealth at the time in the decisions he made about share investments. Despite the constant monitoring he did of the market, he did not react to the fluctuations in the price of the shares and he had no strategy in place for their realisation. Nor had he given proper consideration to a mix of shares in the portfolio so as to minimise risk. The dynamics of their relationship – he being the dominant one of the two – were such that she had no say in what was done, despite her attendance at meetings, documents she signed, or instructions given to the bankers under her name (they came from her husband). In any event, she could not be said to have authorised various transactions by signing documents because she had affixed her signature to blank pieces of paper held at the office (not in her affidavit but raised at the hearing where Mr M denied any knowledge of it). Ultimately, she maintains Mr M was the one who controlled the share investments, more particularly the dealings with the shares, and he did nothing to stem the loss notwithstanding his daily monitoring of the market by selling at a time when they could have still made a profit – all over her objection to borrowing and despite her urging he take a different course.

The issue about Mrs M having signed blank pieces of paper held at the office was put to rest by the evidence of Mrs MK who attended to the business and private family finances. She confirmed that she had signed blank pieces of paper but it was her further evidence that these were only ever used with Mrs M’s specific instructions and permission. Counsel for the wife submitted on the inconsistency between Mrs MK and Mr M about whether she is indebted to him that there is no reason to believe she is not telling the truth (he agreed to take the debt as part of his assets notwithstanding) and that applies here also. I accept, therefore, that while Mrs M did put her signature to blank pieces of paper that was done for the sake of convenience and they were not used without her permission. The other evidence that ran counter to Mrs M’s case is her evidence that she was kept informed every day about the opening and closing prices of various shares by Mrs MK faxing these details every day first to The Cottage and later to the Southern Highlands home. The evidence also demonstrated that Mrs M was part of meetings that set up the arrangements about their investment funds, of meetings with advisers about their investments, and she agreed with the proposition that she could have imposed her will. I am not satisfied the ‘dynamics’ between them represents an explanation for not doing so if her objections and urgings were ignored and she had proposals alternative to what Mr M was doing or a strategy herself that would have averted the loss ultimately sustained. She agreed that her husband had spoken to her daily about financial matters and rather than being kept in the dark about what was going on or excluded from participating in decision making, she said in cross-examination that she was given too much information and probably did not listen. This sits rather uncomfortably, it has to be said, with the picture of her urging Mr M to sell or making proposals about diversification and the like. That the shares were acquired with a view to long term investment goes some way towards explaining why Mr M did not sell when they first fell in price. But, importantly, Mrs M also conceded in cross-examination that the investment in shares, including the shares, was made in good faith with the best interests of the family in mind.

In the final analysis, I find Mrs M was kept informed about matters relevant to share trading, she was not excluded from knowing what was going on, she had the capacity to implement decisions contrary to those taken by her husband had she wished to take their investments in a different direction, no transactions were undertaken in her name without her knowledge or permission, and the investments her husband made, while resulting in significant loss, were made in good faith with the intention of benefiting the family. For better or worse, they arranged their investment dealings as they did. Others might have made different decisions at different times, particularly when the price of shares fell initially, but I am unable to find the outcome of not making different decisions should be visited upon Mr M here. To do so would be to apply a reasonableness test above the mark suited to the situation. It is my assessment that what happened could not be said to fall within the discussion in Kowaliw and Kowaliw (1981) FLC 91-092 and, again, I would think the assessment I have made here would find appellate support given the discussion in Brown and Green (1999) FLC 92-873.

Post separation

Immediately upon their separation $250,000 was transferred into Mrs M’s bank account in Australia from the Swiss account following an agreement that these funds would be used to support her and the children.

After he withdrew from the family home Mr M established himself in rented premises at a cost of approximately $45,000 to $50,000. The rent was $650 per week.

The arrangements they put in place for the children in the weeks immediately following the separation and the later interim orders were noted at the outset. Other interim orders related more to their property dispute were made by consent as the matter awaited trial. On 28 January 2004 provision was made for Mrs M to receive $200,000 and the decision about the manner in which that payment is to be treated left to the trial judge. As it evolved, that became unnecessary given the agreed approach to post separation spending and funds at bank in compiling the asset list. On 30 April 2004 further consent orders were made providing for Mr M and a licensed builder to have access to the Southern Highlands property to report on maintenance and repair work.

From shortly after the separation until around May 2004 there were a series of developments with the business in England and evidence from various quarters was devoted to one aspect or another of that. To summarise, Mr M returned to England in late 2002 to deal with financial concerns, an accountant was engaged to investigate financial irregularities, and early 2003 saw the appointment of a new chairman and downsizing by the closure of offices and staff redundancies. Mr M’s salary ceased around May 2003 when he also received a redundancy payment of 9,169 pounds. That was the time also of the dismissal of Mr DC for misconduct. A capital injection of 35,000 pounds was made from the Swiss accounts in June. The ultimate demise of the business had its beginnings in February 2004 when a major client, the Brighton City Council, invited open tenders for its personnel requirements. The company was advised in late January financial viability would have to be improved to be included in the tender process. In light of this Mr M’s solicitors faxed Mrs M’s solicitors requesting her agreement to funds being put into the business for that purpose. She did not reply and the opportunity to participate in the tendering was lost. The business went on the path to being wound up and it is now agreed it has no value.

The reason Mrs M did not reply is that the request was not brought to her attention. The effect of her evidence when asked about it at the hearing was that she would have agreed had she known of it. How this breakdown in communication came about is not explained. Counsel for the wife nonetheless drew attention to the time frame involved as the situation unfolded: Mr M had two days knowledge of the requirement before the fax was sent and yet she would have been given only 24 hours to consider her position and reply. Yet obviously a prompt decision was called for in any event though it hardly matters as it was never drawn to her attention. It may have been a seminal event in improving the life of the business after its restructure – who could say – but it does tend to demonstrate the stumbles along the way have not all been one sided.

This is an opportune time to address the evidence of Mr DC which probably should not pass without mention. In addition to what has been said of his involvement initially as an employee and then part owner of the company conducting the business as well as their later falling out and his ultimate dismissal, at one point he and Mr M entered into a financial arrangement that resulted in Mr DC receiving from Mr M 25,000 pounds which he used to acquire a property. Litigation between them ultimately followed over their dealings and Mr DC and Mrs M maintained communication by email, apparently with a view to assisting each other with their litigation against Mr M. In his evidence Mr DC offered a variety of criticisms of Mr M, including the suggestion the loan agreement Mr DC signed on receipt of the money was a ‘sham’ and meant to be a gift, but Mr M called the ‘loan’ in unless he contributed money to the business. Other suggestions were that Mr M was a boaster and a schemer out to hoodwink his wife out of money in their divorce proceedings with fraudulent schemes Mr DC declined to go along with. He also alleged that in March 2003 Mr M asked Mr DC if he knew anyone who could go to Australia for 30,000 pounds in a brown envelope and ‘have a meet’ with his wife and Mrs SJ, Mr DC cautioned against it, but Mr M replied ‘the children will thank me in later years. Mrs M and Ms SJ deserve it as they have turned the children against me.’ only to tell Mr DC a fortnight later he should not have behaved in that manner or said what he did.

Whatever was meant by a ‘meet’, it was obviously meant to convey sinister intent on Mr M’s part of the most serious kind. If true, it would suggest Mr M was/is completely unhinged as a person. That he should take Mr DC into his confidence about such a plan would be particularly surprising to say the least given the deterioration in their relationship from late 2002 and Mr DC’s account of being upbraided by him earlier in the year for taking time off work to be with his children, threatening to assault him the next time he saw him, and blaming him for how his divorce was going. I do not accept it. The far more likely explanation for this and Mr DC’s other evidence is that it bears little relation to the truth and is indicative of the store of ill will he so clearly bears towards Mr M.

It will be convenient now to come to the evidence of some of the lay witnesses who either are a family member or close friend of one or the other. Alignment with the cause of one or the other produced no surprises and not all of what was said added anything of real moment.
- Mrs MT is Mrs M’s mother and she related her involvement with the children during the course of their lives. While the family lived in England she visited them regularly, mostly at the expense of her daughter and son-in-law; her daughter and grandchildren visited Australia regularly in the years they were away; the tradition of an annual family holiday on the South Coast was maintained despite their absence overseas although Mr M was not always present; and since their return to Australia she and other extended family have maintained regular involvement with her daughter and grandchildren. It is apparent, and I accept, that Mrs MT has a close relationship with her daughter and grandchildren and in the short time she gave her evidence I gained the impression her role with the children was highly likely to be a force for good in their lives. No doubt this is important for them since there is little or no engagement with extended family on their father’s side. Mr M put none of this in dispute.

Mrs JG is Mrs M’s sister. Her evidence reinforced regular gatherings and closeness within her family, making reference also to the children getting on well with their cousins. While the M’s were in England, she and her family visited them and hospitality and generosity were extended. It was from that relatively brief experience she was able to direct some criticism Mr M’s way about coming home well after the children’s bedtime and sleeping late, the inference being he was an absent parent largely uninvolved with the children’s day to day routine. She bolstered that criticism by contending that on family holidays he rarely participated in activities or outings and he did not get involved with the children or others. She painted a picture of Mr M as inconsistent in the way he engaged with the children, overly fond of his own company, and purposefully pursuing his own interests in the United Kingdom rather than come back to Australia to be available to the children. She said he praised her sister as being a ‘wonderful mother’ – somewhat contrary to the tenor of his affidavit, I should say, which conveyed the impression his surveillance and support were required to make up for shortcomings. All that said, she does not doubt Mr M loves his children.

For his part, he rejected her criticism as lacking any foundation in fact and countered it with detail of his activities and his engagement with the children while on holidays, amongst other things.
On the face of it, these differences seem rather insignificant and might be written off to perceptions of no enduring substance or other explanations. On the other hand, a seemingly marginal point in its own right can add its weight to similar snippets from other evidence and therefore build up a more complete picture of a particular situation. So it may be that Mrs JG’s sketchy portrait of Mr M as a rather self-absorbed person who has preferred his own company and pursuits to that of his children, despite opportunity knocking, might become more relevant and persuasive if consistent with the experience of others. There is some common ground with witnesses clearly aligned with Mrs M. Yet a somewhat different picture emerges from the experiences of others called by Mr M, including former staff, so it is hardly a perception that is universal.

That brings me to the evidence of Mrs SJ whose long term friendship with Mrs M has been maintained over many years, including during Mrs M’s annual visits with the children to Australia while she lived in England. She assisted Mr M in his search from a property in the Southern Highlands when they were planning to return and with locating private schools for the children. Living in the general vicinity when the family made the move, she appears to have maintained a close and constant presence in and around the family.
All seemed to be well enough between her and Mr M over the years earlier on – at least there was no mention of an open breach between them – and he seemed to appreciate her help with the Southern Highlands re-location. But their relationship later deteriorated. She attributes this to a conversation she said she had with him not long after the return to Australia, at his instigation, about leaving the family and going off on his own and never coming back. This picture of him as a solitary figure, free of inhibitors to his intellectual and creative drive, bears some resemblance to Mrs JG’s view. But Mr M denies the conversation went the way she recounted it. I think it fair to summarise his view of Mrs SJ this way: she was over involved in his family, over present in his home, and she over stepped the bounds by her confession to being a ‘stickybeak’ when he found her going through personal papers in the kitchen.
Mrs SJ offered other criticisms about Mr M: he was a late riser, he secluded himself by the fireplace, the children were taken care of by their mother and housekeeper, he shouted ‘door’ to the children who left doors open as they moved about the house (said by him to be a family joke and the children did a skit about it). He also told her Mrs M is a ‘wonderful mother’, thereby casting doubt again upon his criticism of her parenting in the years they were together. During the event that marked their separation, he had been insulting to her and her children and had spoken to her in a calculated way.

She has not had much contact with him since separation but she recounted two encounters with him. In April 2003 he came up to her car at tennis, put his face close to hers before saying: ‘you see my child more than I do. Now isn’t that interesting.’ Taken aback, her reply: ‘well, I love them’. On another occasion when she and her children came across him in town he gathered the M children together, they avoided eye contact with her children, and they did not respond to their greeting. Mr M, it can be noted, gave virtually the same account of the tennis incident though he denied putting his face close to hers and so far as the town encounter is concerned, he agreed he and Mrs SJ had ‘walked past each other’ but the children did return the children’s greeting.
My own assessment of her evidence is that her alignment with Mrs M and the obvious difficulties she had in relation to Mr M gives rise to some reservation about accepting too readily her interpretation of events or that she has described things objectively, particularly when there is other evidence, noted earlier, of those whose experiences of his personality are rather different. On the other hand, it may well be he is as she describes when around her, but that does not mean to say he is that way in the company of others.

Against all of that, I return to the question of responsibility over the years for the children’s care and the household. Without doubt - and it was not disputed by Mr M - their mother has been their primary carer since birth and she has always been more involved than he has in the day to day routine, supervision and arrangements for them. Dr R’s report has several of the children commenting on the more significant presence of their mother in their day to day lives. The issue arises largely because a reading of Mrs M’s affidavit tends to put their father’s role at a much lesser level of involvement than he said he had (airbrushing him out of their lives, as he put it) while, on the other hand, a reading of Mr M’s affidavit tends to paint their mother as inadequate to the task and requiring his constant assistance and support to set children and household to right.

Mr M’s contention is that in addition to being the family breadwinner he was involved in all aspects of the children’s upbringing in other practical ways through the whole array of daily routine, schools, schooling, parties, activities, doctors, holidays, household chores and so on. There is a body of unchallenged evidence from witnesses who were in a position to observe the family arrangements in a variety of ways and circumstances to one degree or another to lend support to that: Ms T, former employee; Mr W, another former employee; Ms S, employed to help in the home; Ms MK’s observations; the housekeeper and the tennis coach, all painted a picture of Mr M playing and being involved with the children in positive ways. Indeed, there were the occasions while living in England when he looked after the children or some of them while their mother took trips in Europe for relatively short duration seemingly without concern. But more importantly, Mrs M made the concession at the hearing that their father’s involvement was greater than had appeared to be so from her affidavit evidence.

As for Mr M’s picture of her approach to domestic organisation and his need to step in to plug gaps, he discussed those with Dr R in fairly robust terms. I have no reason to doubt he did clean up and tidy and so on but whatever he did the inescapable conclusion from the way they saw fit to arrange their responsibilities is that his view of her management skills was not sufficient to bring about any change or to not leave the children in her care for significant periods during his absence or during the times preceding their relocations.

What the evidence establishes overall is that their mother has been the primary carer since birth, she has been a constant presence in supervising their day to day routine and running the household wherever the family has lived, she has done so during prolonged absences by their father and she has continued to do so over the past 2 years or so when the children have spent more of their time during school terms in her care. Their father, on the other hand, I accept to have fulfilled the indispensable function of supporting the family financially and otherwise to have maintained an ongoing involvement in the children’s daily routine when he has been available and he has been committed to their upbringing throughout their lives.

PARENTING PROCEEDINGS

Proposals

Mrs M proposes to continue living at ‘C’, the children would continue to attend the schools where they are now enrolled, and she would be available to see to their needs without the demands of paid work. As for their contact with their father, the arrangements in place for more than two years would continue with the addition of overnight stays each Wednesday. In other words, Mrs M proposes continuing in the role she has had with the children in the past, she maintains they are doing well in her care (she acknowledges three of them have indicated they want to spend more time with their father and Wednesdays overnight is her solution for that), she will maintain their routine related to their school and their other activities, and they would continue to have the advantage of contact with extended family. She is opposed to an equal share arrangement for reasons I shall come to, her proposition being that it is both unworkable and undesirable.

It is Mr M’s proposal, on the other hand, to live at ‘W’ though I have not been persuaded to accept that. In that event, he would either remain where he is or he will rent or acquire another home in the general area. He is also available to care for the children when they are not at school. Time spent with their mother, on the outcome he wants to achieve, would be shared equally on a week about basis. That proposal would give expression to at least the wishes of three of the children and they would have the advantages, on his case, associated with his influence in their life and interest in their activities, more so than is possible under the present arrangement.

Both parents profess to have built into their proposals flexibility for the children to spend time with the other parent or to contact the other parent whenever they wish.

Section 68F(2) factors

Discussion of the evidence relevant to an evaluation of these factors and the submissions about that along with any necessary findings will follow.

The children’s wishes are a strong feature amongst the considerations to be balanced and the evidence on this topic received some emphasis in the submissions of both counsel. Both parents and, to a lesser extent, witnesses had something to say about it, but there is also the evidence of Dr R.

Evaluation of the weight to be given to the children’s wishes has to be approached from several perspectives because they have different personalities, they are different ages, at different stages of development, and they have each expressed views about their own future. It will also be necessary here to consider the extent to which their views are a free expression of their own genuine feelings or whether there are other influences at work. In making that evaluation, I rely upon the evidence given by Dr R who, in my assessment, performed the role she undertook in a competent and professional manner and I was left with no reason to depart in any substantial way from the thrust of her analysis and opinions. They will be reflected in the discussion to follow, taking each child in turn.

T (15) impressed Dr R as well spoken and quiet though he denied feeling nervous. In interview he said he wants more time with his father, he spoke of enjoying spending time with him, that only really happens every second weekend, and he would like to spend equal time between his parents. T revealed he did not want to hurt either parent or choose one parent over the other. He gave a rather balanced perspective in the way he articulated the advantages and disadvantages of time spent with each parent and the exercise of making three magic wishes elicited nothing surprising, including what he said of his parents not separating. Dr R went on in her report to relate other discussion with T. He described himself as ‘reasonably happy’ and identified the ‘downside’ to his life as being with his father only every second weekend, a situation he described as ‘unfair’, saying ‘he deserves half and half’. This seems to have led to Dr R asking T if he worries about his father and he agreed he does because if his father ‘doesn’t achieve his goal, he could become depressed, upset …he is really disappointed with how it is at present.’ He felt he does not have enough time to do things with his father and he will ‘wonder what he’s doing…just waiting for us’.

T’s statements of concern about his father, his perception of his father as a lonely figure just waiting for the children, his anticipation of his father’s response if his ‘goal’ is not achieved, and his father’s disappointment with the current arrangements drew submissions from Counsel for the wife to the effect that there is plainly something else going on with T, giving rise to concern there is at work here a ‘parent problem’ where the child is looking after the parent. He also suggested that a child speaking of what a parent ‘deserves’ is uncommon, and therefore suspicious, a proposition Dr R agreed with, but then again she said children can be keen on ‘fairness’ and these children did display a sense of that in more than one area. Counsel for the husband submitted it is a completely artificial exercise to try to dissect from the expression of a wish by a child what they perceive to be fair, on the one hand, and what they personally want, on the other. I tend to agree.

For his part, Mr M denied doing or saying anything that might have influenced T to express these concerns about him. He maintained he is active, busy and productive, he is not withdrawn or depressed, and nor has he said anything to the children about ‘fairness’.

There is nothing to substantiate a finding of deliberate influence from his father being at the heart of these concerns (such manipulative intent would be highly destructive) and nor was there any submission to that effect, so intent and purpose can be discarded. It may very well have been – indeed his words make it seem likely - that T has seen or heard something, as Dr R said, to give rise to worry about his father. But of course children do form their own perceptions, even if not well founded, by absorbing attitude and emotion in many and perhaps even subtle ways from what surrounds them. Some worry about a parent – here, in the context of separation and all the upheaval that has involved - from a 15 year old strikes me as not particularly unusual and might be indicative of some sensitivity rather than adolescent self-absorption. Clearly, it is a question of degree. In the final analysis I have been unable to come to the view that there has been ‘parentification’ of T by his father because, while these statements to Dr R have given rise to concern about such a dynamic at work, there is another indicator not pointing in that direction; namely, as Counsel for the husband pointed out, there is no evidence that T is ringing his father, sending him text messages, or checking on him during the time between fortnightly visits.

To conclude, at the age of 15, T’s views about where he wants to be are an important and weighty consideration; not only has he expressed those views to Dr R but also, not without significance, to his mother who has been aware he has wanted to spend more time with his father at the very least (see, for example, his letter to her); and, while the evidence raises the alert about the dynamics between T and his father, no adverse inference can be drawn from his statements of concern for his father and nor does T’s ideas about ‘fairness’ give rise to inferences adverse to his father.

A (14) was described by Dr R as somewhat anxious, an assessment I thought mirrored by other evidence of events outside the clinical setting for the interview. In the discussion about lack of confidentiality so as to communicate her wishes, A thought this difficult and became tearful as she did not want to ‘hurt the feelings of the person I’m disagreeing with…might upset them.’ Obviously this distresses her fairly regularly. The use of the pronoun ‘them’ was the subject of submission by Counsel for the wife, the thrust of that being she must, in context, have meant to refer to her father. Perhaps that is right. At any rate, she said she did not want any change from the current arrangement and she expressed her preference for it to be ‘easy…could go over when I feel like it.’ In her oral evidence Dr R said the ‘key thing’ for A was for things to be ‘easy’ – for there to be flexibility. She was able to discuss the advantages and disadvantages of each household.

A thought her three siblings want to spend more time with their father. If the decision was equal time, she said she would ‘get used to it….not dislike it…just miss mum…like being with my dad.’ That said, A did not want separate arrangements just for her because she perceived her parents would not want that and she would miss her brothers and sister and be lonely if she did not live with them on a daily basis. Dr R, who saw her as the child who most dislikes change, was asked in cross-examination about an equal time outcome and the proposition was put that A would not be all that concerned about spending more time with her father. However, Dr R said she did not entirely agree with that: most of A’s sense of where she is comfortable about spending most of her time is with her mother, she likes her father, she would adapt, and it would not be ‘terrible’, but she still located her comfort zone with her mother. Dr R dismissed any suggestion that A would be ‘afraid’ to go to her father – or that any of the children fear him – contrary to the contention of their mother. I accept these assessments.

Counsel for the wife submitted that A is quite close to her mother (that is accepted) but there are important distinctions in the expression of her wish from the way T’s wishes in particular were expressed; that is to say, she expressed wishes referable to herself rather than what her mother needs, or deserves, or wants and nor was it expressed by reference to the ‘fairness’ concept discussed by her brothers. While I note the submission, I do not entirely accept it because there was a body of evidence that does give rise to concerns about A engagement with her mother, to whom she is plainly close, and the extent to which she is worried about her mother and has inappropriately taken on the role of counsellor to her mother. Exhibits 4 and 5 are but examples of this. Not unnaturally, at her age and being the eldest daughter, it is by no means unusual that there should be quite a close relationship between A and her mother. Yet, regrettably, it would appear she has been involved too closely in this litigation between her parents and put in the position of being understandably sensitive to the fall out of things she says. For example, she and her mother discussed the contents of Dr R’s report when it was released. That was instigated by her mother asking if her father was ‘in a good mood’ because the report had been favourable to him. Unfortunately, raising the report and making that sort of remark to A could only have made A conscious of her part in the process. Telling her mother Dr R had not listened to her – a protest presumably she could only make with knowledge of the contents - strikes me as a fairly understandable refuge for a child put in an uncomfortable spot. In the body of the very report the subject of the exchange with A, Dr R recorded A telling her she worries her mother could be sad or ‘something might happen to her’ and A would not see her again, and she spoke of telephone calls and text messages she sends to her mother when she is at her father’s because she ‘worries about her mother and misses her’. What was not in the report, though revealed at the hearing, her mother’s response to these calls is more usually of an anxiety-provoking nature such as ‘are you all right?’ or to disapprove in some way of her father ‘he shouldn’t be doing that’. As Counsel for the husband submitted, these ‘worry triggers’ – there is no suggestion they are deliberate or done with intent - do ignite worry in A and that must inhibit her enjoyment of her time at her father’s. As was also said in the evidence, a ‘less dependent posture’ with her daughter would seem to have been the better course taken by Ms M.

It is against this background that her mother’s evidence about statements A made before and during the hearing, adverse to her father, has to be evaluated. It may well be that A did wonder how they would cope and she may well have said something about her father being angry while the hearing was in progress. Yet outside the report of A’s statements and her communications with her mother, nothing else gives substance to them and the dynamic of negativity about her father, apparent from exchanges with her mother, leaves ample room for misinterpretation or escalation of some more innocent situation or remark.

In summary, A’s preference is for things to remain as they are with a little more flexibility availability to her, she is particularly close to her mother and sees her as her comfort zone, but if there is to be an equal share arrangement for the other children she would prefer to be part of that than separate arrangements made for her. Counsel for the wife made submissions about the emotional consequences for A of being thrust into a situation she does not want, no longer with her primary carer and the parent to whom she is particularly close. This, it was said, would be more than unhappiness, given the deep emotional attachment between her and her mother, and to go against the wishes of a child of her age in those circumstances could create real damage for her. Counsel for the wife acknowledged this was speculative, but said it is nonetheless a matter for concern. For all that, this is an area covered in Dr R’s report when she asked A about her response to an equal share arrangement and Dr R’s later evidence under cross-examination to the effect A does not like change, she is more comfortable spending time with her mother but she likes her father, she would adapt and it would not be ‘terrible’. That is the best evidence of A’s likely response to a decision inconsistent with her preference. Even so, at her age and given the strength of her relationship with her mother, her preference is a matter of considerable weight.

N (12) was described by Dr R as a pleasant, mature child with a positive mood and disposition. He came to the interview prepared, determined to have his say, and he clearly articulated a wish to spend equal time with his parents. He did not differentiate between his parents in terms of the comfort he gained from them or their households (despite his mother describing him as very ‘pro’ his father) and he would not think about the advantages or disadvantages of being at either place. Even in the drawing exercise he was asked to undertake, Dr R said he could not commit to either parent. Like T, he worries about upsetting his parents and he seems to be caught up also in what was called the ‘fairness dilemma’ but the earlier observations I made about that not being outside a ‘normal’ range apply also to N.

An element of avoiding choice may be construed from what was related of N’ interview and yet he was unequivocal about an equal share arrangement, so any unwillingness to ‘commit’ to one parent over the other could be seen as no more than a consequence of his determination to have his equal share preference conveyed. I can see no reason not to accept what he said as a genuine expression of his own feeling. Having regard to his age, I also consider N’ wishes about his arrangements to be a weighty consideration.

L, just 8 years of age, impressed Dr R as confident, lively, somewhat impulsive, and distractible. She declared she had no worries or problems (unlike the others, she denied worrying about either of her parents). She said she wants ‘half time’, to see her parents ‘the same’, and she likes her parents ‘the same’. Dr R considered L’s presentation to be the most straightforward of all four children, perhaps understandably given her age and stage of development. For those same reasons, while her stated preference can be noted and taken into account, it could not be given the force of much weight in the overall balancing process.

Before concluding, I should acknowledge that Counsel for the wife correctly pointed out there is a substantial body of evidence in Mr M’s affidavit about what the children have said to him about their views. He relates there numerous times the children have said things like ‘we miss you, we want more time with you, you’re doing your best for us, I’m on your side, I hope you’re fighting for us’. Counsel for the wife submitted this conveys the impression of an allegiance with their father in some kind of battle and that gives rise to concerns about why they would seemingly need to look after their father and assure him of their support for his position in these proceedings. There is no evidence, as Counsel for the wife also pointed out, of the children making statements about missing him in the years prior to separation when he spent so much of the year in England and it is noteworthy that these feelings were being expressed so repeatedly by the children after the separation. I agree this does create the impression Counsel for the wife identified though ‘battle’ vocabulary has not been confined to statements the children have made and the submission tends to overlook the fact that their mother herself has also employed terms (I am not suggesting to the children) such as being ‘at war’ with Mr M (the context was her united position with Mr DC) and ‘like mental warfare’ (interview with Dr R).

The evidence overall has left me with no doubt these children, from youngest to oldest, have been very alive to the fall out from their parents separation and divorce, of the unresolved uncertainty about their own future arrangements, and of the different positions taken by their parents here. The situation cannot have been easy for them, perhaps more particularly for A whose anxious engagement through phone calls, text messages, conversations and letters lends a rather different more worrisome quality to her experiences. None of that alters the assessment made of their wishes nor the weight to be given to them as discussed.

The children’s relationships may be dealt with fairly briefly. They have a good relationship with each other and there is no doubt they have good relationships with each of their parents. It appears A is closer to her mother and that is understandable given her age and gender – as it is with the boys perhaps identifying with their father and the things they do with him a little more closely. Plainly their parents have different personalities and different expectations of them so far as routine, organisation and the like are concerned but that does not appear to impact on the soundness of any relationships.

There is one aspect about their relationships, however, that should be put to rest and that is their mother’s suggestion the children are fearful of their father. Not only are their own positions contrary to this but Dr R’s assessment did not support it. They were concerned about hurting the feelings of their parents but in so far as this related to their father there was no suggestion this was driven by some fear of his reaction if they did not deliver what they obviously know he wants.

I come now to attitudes to parental responsibilities and capacity to meet the needs of the children, topics that attracted a number of submissions related to various aspects of the evidence and how that should be interpreted.

In her case, Mrs M pursued a contention that (not her words) there is an imbalance between her and Mr M arising from their personalities. The dynamic of their interaction, a long time in operation, means any shared parenting arrangement would not be workable. At the heart of this is a stark contrast in their dispositions: she is a timid person, she does not voice strong opinions, and she abhors conflict; Mr M is a more forceful personality, given to holding strong opinions, convinced of his own rectitude, and aggressive and vindictive in business. These attributes when brought to any discussion where different views have emerged means, on her account of it, he would go on and on, she could not or would not argue just to avoid any conflict, and his view or will would prevail.

According to Counsel for the wife’s submission, the way in which they interact is important because of the shared parenting proposal and what this means is that Mr M would easily gain the ascendancy in any future disagreement about a matter affecting the children, as he would well know. On a related point, he said the capacity for flexibility is important here because Dr R, as part of the conclusion she came to, suggested the elder children should be able to move freely between their parents’ households though consistently with reasonable expectations. It was submitted Mr M is wanting in this regard also, whereas Mrs M is capable of being flexible.

Mrs M’s account of the dynamic between them was not entirely inconsistent with Dr R’s interpretation from the time she spent with them in that she described Mr M as the more dominant one and a person of strong opinions whereas she found Ms M to be timid and anxious, though gaining some confidence about asserting herself since the separation. The view of Mr M as less flexible than Ms M also had some support from Dr R.

Certainly Mr M described his former wife - at least in the early days of their relationship - as someone who was easily intimidated, avoided conflict, and often found social situations uncomfortable and there were later events that tended to indicate this was still part of her make up to some extent (she could not fire staff, she did not want to front the school principal after she was cautioned about driving in the grounds). He also acknowledged himself as holding strong opinions and so on (his discussions with Dr R). But he does not accept the proposition that any of this had led to him imposing his will on her or that he has any lesser capacity for flexibility.

Some support for his views about this is to be found in the evidence (not necessarily considered by Dr R). As Counsel for the husband pointed out, they disagreed about the children’s move from one school to another while living in the United Kingdom but it was their mother’s view that prevailed; they had different views about whether L should repeat a year at school but the mother’s view prevailed; in the face of her proposal about the Christmas holidays after their separation their father offered a change so as to allow her to have the children during the annual beach holiday with her extended family and she accepted; and he proposed arrangements for the children to spend some time with their mother rather than stay with him after the trip he took with them to New Zealand. The incidents are few, that is granted, but sufficiently demonstrate Mr M is capable of bending on decisions related to the children and the picture painted of iron dominance cannot be sustained. I accept he is a person of strong opinions and not backward in coming forward about them – the incident in Boston is an example – and I accept Mrs M is someone who has avoided conflict and found it difficult to assert her views in the face of opposition. Yet while I gained the impression there is most likely something in her description of the way they have related – his persistence in asserting his view, her unwillingness to engage lest there be conflict – I am not left with the impression this tendency to either advance or retreat when a difference of opinion arises amounts to a power imbalance that would call for cautious protection in decisions made here. I do agree that flexibility will be important for the children when these proceedings are behind the family and it is likely it will become more so as time goes on, they develop further interests and assert their own views about what they want to do and when. That is likely to be the case whatever proposal is adopted. As far as I can tell both parents would acknowledge that and act accordingly if their focus is maintained on what is best for the children rather than churning over grievances arising from their own relationship in the past.

Submissions were also made about Mr M being insensitive to the children’s needs and shortcomings were said to be evident in several areas. There is his continued attendance at basketball games despite his awareness of the mother’s discomfort at his presence. His proposal to live right next door to her knowing how she feels about him highlights his insensitivity. His initial proposals about the children’s care run counter to any view of him as sensitive to the children’s needs, they make it clear his priority was to be in the United Kingdom without any real necessity to be there, and he gave the children’s arrangements no proper thought. Moreover his behaviour on the night of the separation was a complete disregard for the children’s interests and reflects poorly on any claim of being sensitive to the children’s needs.

100.Taking these in turn, the incident at the point of their separation was undoubtedly a distressing episode for those children who were aware of it and there can be no doubt when all is said and done Mr M did conduct himself without sufficient restraint or proper thought for the impact of his behaviour on his wife or the children. It is acknowledged, as Counsel for the husband submitted, tension had been building up beforehand through the isolation policy apparently in operation but, nonetheless, he drove the sequence of events that unfolded on that evening. That said, it can also be acknowledged this was not conduct of a kind that featured in their relationship to that point and nor has there been any similar episode since. So while Mr M’s behaviour does not escape critical assessment, it has been an isolated incident the likes of which are unlikely to be repeated.

101.I agree the earlier proposals he made were impractical, unsuited to the children’s needs and proper thought was plainly not put into them. I also agree that the proposal to live at ‘W’ has been made without real thought given the knowledge he has of the children’s dilemma in this dispute. That result would bring about for them increased exposure to the tension generated by their parents and the general disapproval they each convey of the other, not to mention the dis-inhibiting impact it would have in all probability on either him or his former wife getting on with their own lives. His argument about the saving in capital gains tax is acknowledged but, unfortunately, that is a price that will have to be paid as part of the process of disengaging their property entitlements. His continued attendance at basketball games is a more moot point given his role with the team and, it will be recalled, there was encouragement for him to stay during their tennis and support their endeavours there.

102.The criticisms have not been all one way, however, and Mrs M exposed herself to that by reason of decisions she has taken about the children without informing or involving their father. Examples are the change in A’s school enrolment, L being sent to an occupational therapist, arrangements for T to give evidence in Court, and N’s interview at school without advising his father and, less significant, nothing was said to him about the student who was staying with the family. Seen as an attempt by her to marginalise him and his parental role, the point throws up concerns about whether this would continue into the future were the children to spend most of their time in her care. The concern becomes heightened when this is considered alongside her conceded understatement of Mr M’s role in the children’s upbringing and her allegation - or misguided perception - of the children being fearful of their father.

115.These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.

116.All of this is helpful guidance from either appellate level or from persuasive first instance decisions, but none of it is to be found in the legislation. What the legislation directs is a ‘best interests’ decision and that must ultimately depend on the particular facts of the case and the evaluation of all options - including an equal share arrangement if it is available. I say this because it strikes me as easy enough to fall into the error of elevating this guidance and discussion to the level of a check list of imperatives to be met (or mostly met) before a decision could be made to introduce or retain such an arrangement or, put another way, of seizing upon the absence of one or other of the factors discussed to preclude its introduction or retention.

Conclusion

117.In the final analysis, I have come to the view that equal time a week about would be the preferred arrangement.

118.The proposal by their mother involves the children spending 5 nights a fortnight with their father and moving between households in any fortnight of school term in a pattern that would see them spending their nights: 3 (father) 2 (mother) 1 (father) 6 (mother) 1 (father) 1 (mother) and the cycle begins again. This involves frequent changes for the children during their school weeks, going to and fro for relatively short periods, their nightly arrangements differing depending on the day of the week and which of two weeks in the fortnightly cycle. The week about period has the advantage of a settled week for them without this frequency of change and any issue argued against that strikes me as applicable at least equally or even more so when applied to their mother’s proposal. I am satisfied that both parents are capable of providing the commitment and care necessary to fulfil that role, the children would be well used to any differences of approach about organisation and routine coming from either of them, they both have much to offer the children, and it is an outcome that gives expression to the preferences of three of the children. It is acknowledged that it is not A’s preference but she does not want arrangements separate from the others and the assessment made of her position is that she would adjust. Her mother, of course, will have an important role in assisting her with that adjustment. It is acknowledged also that it is an arrangement that is not the one their mother proposed and, as their primary carer to this point, it is no doubt one that will be difficult for her to accept. Nonetheless, when compared to the disruption and change involved in implementing the alternative she offered, this is the preferred course.

119.How the week about is arranged is of no particular importance but I have designated Friday after school as the changeover point because, so it seems to me, the children could have the weekend at the home they will go to and from school the following week and therefore have sufficient time to get their things together and organised well in time for the Monday morning start.

120.As for other orders related to parenting, it may be the parents wish to have some provisions made different to those that will appear later. For example, I do not know whether the Christmas arrangement as drafted will be to their mutual satisfaction or there is some other more preferable way of arranging the long holidays at that time of the year. If that is the case, along with any other arrangement to surround the fundamental decisions made, consideration can be given to it before the orders issue formally.

PROPERTY SETTLEMENT

121.I have dealt with the contentious issues earlier and what follows is either agreed or resolved earlier.

Assets and liabilities
A.

‘W’ property 2,250,000

Vacant land 600,000 2,850,000
Less:
Vendors tax and capital gains tax to be determined

(see expert’s report for estimates)

B.
‘C’ property 1,100,000

C. (with Mrs M)
Mr MJ loan   18,400
Land Rover Range Rover   26,000
Westpac CMT account     132,981
Westpac account       8,966
Household effects –  29,835
AGA stove  10,000
Legal fees paid   107,780
   333,962
Less:
Mastercard   1,548   332,414

D. (with Mr M)
Swiss Bank account 1,019,979

Westpac account 36,591

Land Rover Defender   25,000
Household effects   20,000
Shares    20,809
Ms MK loan (10,000 pounds)        25,650
Loan to Ms RF (217,150 pounds)   556,989
Interest on Ms RF loan    75,193
Shares in ABC Personnel     nil
Shares in 123 Sports Limited                      nil
Legal fees paid     224,406  2,004,617

Total: 3,437,031

Total overall (excluding taxes on sale) 6,287,031

Evaluation of contributions

122.The history recounted earlier makes it apparent that each has made contributions of the kind that fall within s 79(4)(a)-(c).

123.At the time they began living together Mr M was operating a business and was in a better financial position than Mrs M. They both contributed to the lifestyle they enjoyed until she ceased work in 1986 and he then became the provider for several years when she gave up work. In the few years before they left for England they acquired the flats and their first two children were born. Mr M continued to provide financially for the family and Mrs M attended to the running and refurbishment of their home and the care of the children after their birth. All was lost save for some superannuation and with that and a personal loan they moved to England to re-establish themselves in business with a view to creating sufficient wealth to retire. Nonetheless, the business he brought into the relationship provided them with income over those years, including the years Mrs M was not in paid work and before the birth of their first child.

124.Mr M did the groundwork necessary to establish the ABC business, no doubt relying on the field of expertise he had developed earlier, and he did what was necessary for the family to make the move to England though Mrs M did other practical matters associated with that. With very little at the start, some 8 years later they had a business that sold for over 8.2 million pounds. In the meantime Mr M had worked up the business and fitted around that his parental responsibilities and assisted with the running and organisation of their home. Mrs M was primarily responsible for what was necessary on the home front and their children’s day to day supervision. They had a comfortable lifestyle in those years, as indicated by the manner of schooling for their children, their accommodation, cars and travel. Having sold the business they took the steps advised so as to minimise their taxation liabilities and took advice as to investment. Mr M also made the decision to re-purchase of a division of ABC when it was offered to him and sale and funds were put into that. Other investments were held in shares, real estate, and cash.

125.Mr M made the preparations for their return to Australia towards the end of 1999 by acquiring the property to become the family home, work was undertaken to improve that and the children enrolled at local private schools. Their fortunes took a downward turn in January 2000 with the decline in the stock market and other monies were lost later in the year with the failed bid to acquire the farm. They suffered a severe blow financially with the crash of the shares and lost a large amount of their investment. In those years until their separation in the latter part of 2002 Mr M spent months each year in England while Mrs M remained to see to the children’s day to day needs and the family home. Nonetheless, there were holidays spent together as a family in the time he was away and Mr M remained in constant communication during absences.

126.Those were years in which they each made contributions in their own sphere of responsibility. Mrs M was the continuous presence in the home seeing to the children’s needs of various kinds, including periods of their father’s absence, with the assistance of housekeepers as had been the case for most of the time they had lived in England. She also oversighted the renovations to the Southern Highlands residence. Mr M attended to business and investment but he also played an important role with the children and around the home.

127.After their separation the business in England went into decline and crisis management was required during the course of 2003, some capital was injected to meet debts, but ultimately the business was not able to be saved in circumstances where they did not position it to tender for an important contract with a major client. Mr M oversighted these difficulties and that required his presence from time to time in England. Proper financial provision was made for Mrs M and the children, not only through the funds provided to her at the point of separation but also in a further distribution once Court proceedings had been commenced, and she had exclusive occupancy of the Southern Highlands property from shortly after their separation. Mr M, on the other hand, also had funds available for his use and they were applied to establish himself in a home proximate to the children and his other needs. They have each in the last 2 ½ years taken some responsibility for the children’s care though the children have spent more time with their mother. Again, these have been years when they have each made contributions in their own sphere of responsibility.

128.Counsel for the husband presented an argument to have Mr M’s contribution assessment increased by reason of his ‘special skills’, consistent with that line of authority through a number of well known cases starting with Ferraro and Ferraro (1993) FLC 92-335. His submissions acknowledged a reduction in the weight of the special contribution by reason of the loss in investments, but he maintained that does not completely eradicate the significance of his contributions when the value of the assets they now retain is still so high. It is said those assets are the result of his acumen, entrepreneurial skills and judgment and, more particularly, the success of the ABC group reaped them a large amount of money attributable to his drive and initiative. It is submitted this factor (combined with the waste argument against Mrs M) ought to produce an assessment of contributions in the proportions of 60% to Mr M and 40% to Mrs M.

129.Counsel for the wife, on the other hand, rejected the special skills argument and I think he was right in doing so.

130.In my assessment, when these phases of their 20 years of living together and the 2 ½ years since their separation are viewed either separately or as a whole, it is plain Mr M was good at his business but there is nothing that stands out as ‘special’ such as to warrant a weighting in his favour. The whole of their endeavour was a joint enterprise, in business/investment or on the home front in the raising of their four children, and while they had different spheres of operation, ultimately I come to the conclusion that their contributions overall should be seen as approximating equality.

Section 75(2) factors

131.Neither has any health issues that would prevent them from earning income to support themselves and the children in the future but of course there are differences that separate them on that score and their current circumstances need to be considered in any evaluation of their future.

132.Mrs M, now 45 years of age, has not been in the paid workforce for nearly 20 years when she worked as a secretary. Obviously she would need retraining to take up a similar position now. There are still many years of working life ahead of her until ‘normal’ retirement age and undertaking some retraining could be a real choice for her. On the other hand, she will have equal responsibility for the children’s care in circumstances where they are settled in schools and living in an area where the opportunities for her must surely be less than a larger metropolitan setting. Nonetheless, she indicated an intention to look for part time work once the children are all in secondary school though with L just 8 years of age that will be some years down the track. Her capacity, therefore, to earn income from employment in the future must be seen as very limited and not a real consideration here.

133.Mr M at the age of 54 years has fewer years before the ‘normal’ age of retirement, but he has a vast amount of experience in business, at least in the field of personnel supply, and so it might be thought he has a much greater prospect of earning income over the remainder of his working life. His position, however, is that he will not be returning to that kind of business, it is impractical to do so from where he lives, and in any event he would not fit too well into the framework required of a business employee. He was criticised for having sent around his credentials to many firms (there was no offer to snap him up) yet I think there was something in Counsel for the husband’s rejection of that criticism. Had he not done so, he could well have been met with other criticism to the effect that his future capacity remains speculative because he had done nothing to test his place in the market. At any rate, evidence was called by each party from those experienced in the field propounding the probabilities of Mr M obtaining work based on his age, background, and experience.

134.Contrary to the opinion of Mr McL, called by Mr M in his case, Mr B said Mr M would have little difficulty in obtaining employment at a senior level within the recruitment industry ‘particularly when considering the current strong demand for talent and the distinct shortage of skilled individuals at Mr M’s level’ and he considered he should be able to command a package of between $130,000 and $200,000 per annum, though that would be based in Sydney and elsewhere. Yet it was demonstrated to my satisfaction that not all of the positions on which he had based his opinion were suited to Mr M’s experience and background and he was forced to concede at one point that one prospect represented an ‘absurd’ proposition. Mr McL’s evidence was the more persuasive.

135.Having said that, Mr M’s particular setting and responsibilities also have to be seen in context, just as does Mrs M’s. He will have equal responsibility for the children with their mother and he will continue to live in the area where they are settled at their schools and part of an established community. This considerably inhibits his capacity to use the skills and experience he does have, just as it inhibits Mrs M from re-positioning herself in the paid workforce by retraining and considering a range of opportunities that might be available to her elsewhere. He may very well pursue the idea of publishing or writing after these proceedings are behind the family, but neither that nor the financial benefits of it could not be predicted with sufficient certainty here.

136.The distribution of capital between them will be equal and there is no factor that would require an adjustment in favour of either. They will have their capital from which they will be able to accommodate themselves and the children (Mr M will have the costs associated with acquiring a home if that is what he does) and otherwise they will have capital to invest from which to earn income for their own support and the support of the children over their remaining dependent years.

137.In my view their net assets ought to be distributed equally between them.

Effect of assessment

138.This means they will each receive assets worth $3.1 million or thereabouts though that includes the agreed value of the vacant land and ‘W’ and takes no account of the taxes to be paid on sale. What they each ultimately receive will depend on selling price, costs of sale and the capital gains tax payable and because that is uncertain, it is more appropriate orders be made separately to take account of contingencies. Putting the ultimate net sale proceeds to one side, each will be entitled to receive assets worth $1,718,515.

139.Mrs M will retain ‘C’ and the other assets listed above with a net value of $332,414 and to bring her to her entitlement Mr M will have to pay her $286,102 (say $286,000) from the assets he retains. She will therefore have an unencumbered home, associated chattels, and a cash sum to invest along with half of the net proceeds from the sale of the other properties in due course.

140.Mr M, on the other hand, will not receive realty as part of his entitlement and the assets he will retain include the advances and interest to Ms RF. But he will have realisable assets sufficient to purchase a home if that is his intent and cash funds to invest depending on the capital he decides to outlay for housing.

141.In my assessment, this will bring about a just and equitable division of property.

Orders

142.There has been no indication whether the sale of the properties in the Southern Highlands should proceed by way of auction or private treaty or any other details related to the sale. The orders therefore will be in general terms and to the extent necessary machinery provisions to give effect to the orders can be made if necessary by the parties being granted liberty to apply for them.

Spouse maintenance

143.Mrs M’s claim for maintenance can be dealt with briefly. What she will receive by way of property (including an unencumbered home) has just been discussed. She will have sufficient funds to invest to provide for her own support. Therefore I could not be satisfied she establishes the threshold criteria stipulated in s72 of the Act and her application will be dismissed.

144.That said, Mr M is presently paying $5,000 per month to her and Counsel for the husband indicated at the close of hearing that will continue until judgment or if appropriate the property orders have been put into effect. While her application will be dismissed, submissions will be sought as to continuing support for the short term future but I would have thought if the $286,000 is paid to her forthwith that would obviate any need for this monthly sum to be paid pending the sale of the realty.

145.For those reasons, the Orders will be:

The parents are to have joint responsibility for making decisions for the long term care, welfare and development of the children: T born April 1989, A born November 1990, N born August 1992 and L born November 1996.
Each parent is to have responsibility for making decisions related to the children’s day to day care, welfare and development while the children are living with that parent.

Subject to these orders and any agreement between the parents, during school terms the children are to live with each parent week about, changeover to occur after school on Fridays, and after the resumption of each school term the parent in whose care the children were for the first half of the school holiday immediately preceding is to be the parent with whom the children will spend their first week of school term.
Subject to these orders and any agreement between the parents, during school holidays the children are to live:
(a)with their mother during the first half of each school holidays 2005 and each alternate year thereafter, and the second half of each school vacation which commences in 2006 and each alternate year thereafter; and
(b)with their father during the second half of each school holidays which commences in 2005 and each alternate year thereafter, and the first half of each school holidays which commences in 2006 and each alternate year thereafter.
The children are to have contact
(a) with their father on Father’s Day and their mother on Mother’s Day;
(b)with their father from 9am on Christmas Eve until 3pm on Christmas Day in 2005 (and odd years thereafter) and from 3pm on Christmas Day until 6pm on Boxing Day in 2006 (and even years thereafter); and
(b)with their mother from 3pm on Christmas Day until 6pm on Boxing Day in 2005 (and odd years thereafter) and from 9am on Christmas Eve until 3pm on Christmas Day in 2006 (and even years thereafter).
The wife do all things and sign all documents necessary to sell as soon as practicable the properties known as ‘W’ and the vacant lot for the best possible price and the proceeds of sale are to be distributed equally between the parties after payment of:
(a)       selling costs and commission on sale;
(b)       vendor’s duty; and
(c)       capital gains tax referable to the sale of these properties.
Subject to entitlements under order 6 hereof, the wife is entitled to retain absolutely:
(a)       the property known as ‘C’ in the Southern Highlands;
(b)       bank accounts in her sole name;
(c)       the motor vehicle presently in her possession;
(d)       household effects at ‘C”, ‘W’ and the storage facility; and
(e)       the Aga stove;
(f)        recovery of the loan to Mr MJ
and within one month from the date of these orders the husband is to sign all documents as may be necessary to transfer any of these items to the wife.
Subject to entitlements under order 6 hereof and subject to order 10 hereof, the husband is entitled to retain absolutely:
(a)       bank accounts in his sole name;
(b)       the motor vehicle presently in his possession;
(c)       household effects located at his present residence;
(d)       the shares;
(e)       recovery of loans to Ms MK and Ms RF;
(f)        all shares in ABC Personnel Pty Limited and 123 Sports Limited
and within one month from the date of these orders the wife is to sign all documents as may be necessary to transfer any of these items to the husband.
On or before one month from this date the wife is resign from any office held by her in ABC Personnel Pty Limited and 123 Sports Limited and the husband is to indemnify and keep indemnified the wife against all liability howsoever and whensoever arising out of any office the wife has held in those companies.
On or before one month from this date the husband pay to the wife the sum of $286,000.

I certify that the previous 145 paragraphs are a true copy of the judgment delivered by the Honourable Justice Moore.
Associate: